State v. Bock

656                   January 28, 2026                No. 37

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                   COREY ALAN BOCK,
                    Defendant-Appellant.
               Washington County Circuit Court
                    17CR41800; A180670

   Eric Butterfield, Judge.
   Argued and submitted January 10, 2025.
   Bear Wilner-Nugent argued the cause and filed the briefs
for appellant.
   Timothy A. Sylwester, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Shorr, Presiding Judge, Powers, Judge, and
Pagán, Judge.
   PAGÁN, J.
   Affirmed.
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           PAGAN, J.
          Defendant appeals from a judgment of conviction
for three counts of unlawful use of a weapon with a firearm
(UUW),1 ORS 166.220, ORS 161.610 (Counts 1-3); one count
of attempted murder in the second degree with a firearm,
ORS 161.405, ORS 163.115, ORS 161.610 (Count 4); and one
count of felon in possession of a firearm with a firearm (FIP),
ORS 166.270, ORS 161.610 (Count 7). Defendant raises
four assignments of error, arguing that the court erred by
(1) not providing the jury with defendant’s requested special self-defense instruction; (2) not merging Counts 1 and 4;
(3) imposing an upward departure sentence based on the
finding that prior criminal sanctions had not deterred defendant; and (4) imposing consecutive sentences for Counts 4 and
7. Defendant’s arguments on each assignment of error are
unavailing. First, the trial court did not err because the uniform self-defense jury instructions given conveyed the same
information as defendant’s requested instruction. Second,
the trial court did not err because the conduct underlying the
two charges was separated by a sufficient pause. Third, the
trial court did not err because the record contains sufficient
evidence to support the finding that prior criminal sanctions had not deterred defendant. Last, defendant has not
developed an argument as to why Article I, section 44(1)(b),
of the Oregon Constitution does not allow the trial court to
impose consecutive sentences when the charges involved
different victims. Because we determine that the trial court
did not err, we affirm.
                          I. BACKGROUND
         Because defendant was convicted, the facts are presented in the light most favorable to the verdict. State v.
Johnson, 

, 

 (2007), cert den, 

 (2008). The evidence at trial, which was based primarily on witness testimony, provided the following account
of events.
       On the night of May 22, 2017, the victim, AC, and his
daughter arrived home following a friend’s funeral. As they

    1
      Defendant was found guilty of unlawful use of a weapon with a firearm on
these three counts as a lesser included offense of attempted aggravated murder.
658                                                         State v. Bock

were getting out of the car, AC noticed headlights down the
street and then heard an engine roaring as a car he did not
recognize came up to AC’s neighbor’s house. AC, standing
next to his car with the door open, watched the approaching
car. A man, whom AC identified as defendant, and a Latino
man, later identified as J,2 walked up and verbally confronted AC, who told his daughter to run inside. Defendant
punched AC in the face and pulled out a gun. During this
altercation, AC stated that he had a small handgun and told
defendant to get off AC’s property or he would have to shoot.
The handgun was small enough that it remained concealed
in his hand. When defendant punched him again and did
not leave, AC dropped the handgun, pushed past defendant,
and tried to run away but slipped in the driveway and fell.
Defendant shot at AC with defendant’s gun and missed.
         AC then ran around the side of the house and fell
to the ground. While he was on the ground, J caught up to
him and started punching him and tearing at his hair. At
that time, AC’s housemate, TM, came out of the house to
assist AC, at which point defendant hit TM on the head with
a gun. Defendant and J ran off shortly after, back towards
their car.
         AC went with TM to recover his handgun from the
driveway. AC retrieved his handgun and then went around
to the front of his work van to see where defendant had gone.
Defendant and J were at their car, yelling in frustration.
WH, AC’s other housemate, then came outside while on the
phone with 9-1-1. She tripped on the curb. Defendant then
shot several times into the air, then several more times in
AC, TM, and WH’s direction but missed them. AC fired a
shot from his handgun back at defendant.
         AC, TM, and WH ran back to the house, and defendant followed, still holding his gun. As they were trying to
open the door, AC shot at defendant, hitting defendant in the
foot. When they managed to get into the house, they tried to
close the door against defendant, who got his foot and hand
through the door. Defendant was pushed out of the way,
and the door was locked. Defendant then tried to come in
    2
      J was defendant’s codefendant at trial (Case No. 17CR46509) and is not a
party to this appeal.
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through a different door, hitting it repeatedly with a shovel
and trying to wedge it open. As police started to arrive on
the scene, defendant and J ran away from the house. Police
apprehended defendant shortly after.
          Defendant was indicted on three counts of attempted
aggravated murder with a firearm (Counts 1, 2, and 3),
attempted murder with a firearm (Count 4), assault in the
second degree (Count 5), burglary in the first degree (Count
6), felon in possession of a firearm with a firearm (Count 7),
and interfering with a peace officer (Count 8).
          Significantly for our analysis, this is defendant’s
second trial, taking place after we reversed defendant’s convictions on several counts in State v. Bock, 

,

 (2021) (Bock I).3 In the first trial, the trial court
gave jury instructions which permitted the jury to assess
defendant’s self-defense claim from the victim’s perspective
and, if it found that the victim’s use of force was lawful,
find defendant had not acted in self-defense. 

. We
held that the jury instructions misstated the law, explaining that “whether or not the victim was actually justified in
using force is equally irrelevant in evaluating a self-defense
claim under ORS 161.215(2) as it is under ORS 161.209.” 

. We remanded for a new trial on Counts 1, 2, 3, 4, 5,
and 7. 

.
         During the second trial, defendant requested a special jury instruction stating, “A claim of self-defense is evaluated only from the perspective of [defendant],” invoking our
holding in Bock I. 

. The trial court rejected defendant’s instruction, instead using the uniform jury instructions for self-defense. Defendant was convicted of the lesser
included offense of unlawful use of a weapon on Counts 1, 2,
and 3;4 attempted murder in the second degree on Count 4;
     3
       In Bock I, we affirmed defendant’s convictions on Count 6 (burglary in the
first degree, ORS 164.225) and Count 8 (interfering with a peace officer, ORS
166.247). 

. Thus, only Counts 1, 2, 3, 4, 5, and 7 were at issue
during the second trial from which this appeal is taken.
     4
       UUW is not generally a lesser included offense of attempted aggravated
murder, because it requires proof of the use of a “dangerous or deadly weapon,”
which is not an element of attempted aggravated murder. However, in cases such
as this one in which the counts of attempted aggravated murder included that
defendant used a firearm as an additional material element, UUW may be a
lesser included offense as it was here. See ORS 161.610(2) (use or threatened use
660                                                             State v. Bock

felon in possession of a firearm with a firearm on Count 7;5
and acquitted of assault in the second degree on Count 5.
        At sentencing, the court imposed an upward departure when sentencing defendant for attempted murder,
sentencing him to 144 months’ imprisonment. The court
based its departure entirely on its finding that the state
had sufficiently proved the enhancement factor that prior
criminal sanctions had not effectively deterred defendant.
Additionally, the court imposed consecutive sentences for
Counts 1, 2, 3, 4, 6, and 7, for a total sentence of 240 months.
Defendant timely appealed.
                              II. ANALYSIS
A.    Refusal to Give Defendant’s Special Jury Instruction
         In his first assignment of error, defendant asserts
that the trial court erred by not providing the jury with his
requested special jury instruction that stated: “A claim of
self-defense is evaluated only from the perspective of [defendant].” We disagree.
         We “review a trial court’s refusal to give a requested
jury instruction for error of laws.” State v. McNally, 

, 

 (2017). “In reviewing the trial court’s
refusal to give a requested instruction, we view the record
in the light most favorable to establishment of the facts necessary to require that instruction.” State v. Egeland, 

, 

 (2014).
         In general, jury instructions must explain the law
clearly so jurors can carry out their function, and thus, the
court errs if it gives an instruction that is misleading or
overly confusing. State v. Martin, 

, 

 (2018). Additionally, a court must instruct the jury
on the defendant’s theory of the case so long as it correctly
states the law and there is evidence to support it. McNally,

. However, it is not error for the trial court to

of a firearm may be pleaded in the accusatory instrument and proved at trial as
an element of aggravation).
     5
       The FIP count is Count 7 on the original indictment but is also sometimes
referred to as Count 6 in the record because only six counts (1, 2, 3, 4, 5, and 7)
were remanded for a new trial. We therefore refer to the count as “Count 7” for
clarity and consistency.
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refuse to give a defendant’s requested instruction if it adds
nothing to the instructions the court has already provided.
State v. Montez, 

, 

 (1990).
         Here, defendant argues that his proposed special
instruction was necessary to ensure that the jury did not
improperly consider the victim’s perspective when evaluating defendant’s self-defense claim. While we acknowledge that defendant’s proposed jury instruction accurately
states the law, the uniform jury instructions the court provided already communicated the substance of defendant’s
requested instruction. The instructions the trial court gave
repeatedly instructed the jury to consider defendant’s reasonable beliefs, providing in relevant parts:
      “A person is justified in using physical force on another
   person to defend himself from what he reasonably believes
   to be the use or imminent use of unlawful physical force.
   In defending, the person may only use that degree of force
   which he reasonably believes to be necessary.
      “…
      “The defendant is not justified in using deadly physical force on another person unless he reasonably believed
   that the other person was committing or attempting to
   commit a felony involving the use or threatened imminent
   use of physical force against a person or using or about to
   use unlawful deadly physical force against defendant or
   another person.”
See UCrJI 1107, 1108 (emphasis added). That language
instructed the jury to consider defendant’s reasonable
beliefs, and unlike the instruction in Bock I, the given
instructions do not imply that any other perspective is relevant to the inquiry. Thus, the substance of defendant’s
requested instruction was sufficiently communicated without providing the special instruction.
         Defendant nevertheless claims that his special
instruction should have been given because it provided
needed clarity and would prevent possible confusion over
what perspectives the jury could consider. We are unpersuaded by that argument because defendant fails to show
that the instructions given by the trial court required clarification. Defendant argues that the jury could have been
662                                              State v. Bock

confused because there was no direct statement about
whose perspective it was to consider and that the information was instead “buried within a larger statement about
defendant’s reasonable belief regarding the use of force ….”
Defendant additionally claims that the given jury instructions were a “dense wall of instructive material” and that
the relevant information about defendant’s belief was “just
one clause within a complex sentence which [was] in turn
contained within many paragraphs ….” But a complex sentence or paragraph is not inherently overly confusing such
that it would make the refusal to give a clarifying instruction erroneous. Moreover, defendant incorrectly claims that
there was only a single clause instructing jurors to consider
defendant’s reasonable beliefs, when, as reproduced above,
such language appeared three times in the combined jury
instructions, further undermining defendant’s argument
that the instructions given were not sufficiently clear. The
trial court did not err by declining to give defendant’s special jury instructions.
B. Merger of Counts 1 and 4
        In his second assignment of error, defendant argues
that the trial court erred by not merging the guilty verdict
for UUW against AC (Count 1) with the guilty verdict for
attempted murder of AC (Count 4). We disagree.
         ORS 161.067(3) provides that “[w]hen the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves
repeated violations of the same statutory provision against
the same victim[,] … each violation, to be separately punishable under this subsection, must be separated from other
such violations by a sufficient pause in the defendant’s
criminal conduct to afford the defendant an opportunity to
renounce the criminal intent.” A sufficient pause “means
a temporary or brief cessation of a defendant’s criminal
conduct that occurs between repeated violations and is so
marked in scope or quality that it affords a defendant the
opportunity to renounce his or her criminal intent.” State
v. West-Howell, 

, 

 (2016),
rev den, 

 (2017) (internal quotations removed).
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         Whether a pause is “sufficient” to allow for multiple
convictions is a question of law. State v. Ballangrud, 

, 

 (2025). The duration and nature
of any intervening events are questions of fact, and therefore, we are bound by the findings of the trier of fact, provided that they are supported by constitutionally sufficient
evidence. 

         In determining whether a sufficient pause occurred,
a court considers the length of the pause, what happened
during the pause, and qualitative differences in the defendant’s criminal conduct during the pause. 

 For example,
in Ballangrud, we concluded that a sufficient pause had
occurred between two instances of sexual abuse because
the first instance of touching occurred on the living room
couch, there was a pause during which the defendant moved
the victim to her bedroom, and then the second instance of
touching occurred. 

 We explained that there was a sufficient pause because there was a “temporal break between
the conduct on the couch and the conduct in the bedroom,
including qualitatively different conduct occurring between
the two acts.” 

. We concluded that the pause was
sufficient even though the record did not reflect the amount
of time between the two acts. 

         Here, defendant argues that the trial court erred
by not merging the guilty verdict on Count 1 (UUW) with
Count 4 (attempted murder) because, in the context of this
case, UUW was a lesser included offense of attempted murder.6 We disagree because the two shootings constituting the
two convictions were separated by a sufficient pause.
        There was a sufficient pause between the two
instances of shooting, during which defendant had the
opportunity to renounce his criminal intent. Between the
two instances of shooting, there were several notable intervening events: AC managed to briefly get away, J chased
after him and attacked AC while TM and WH came out
of AC’s house, and defendant and J returned to their car
and appeared to be frustrated trying to open it. Like in
Ballangrud, in which there was a sufficient pause when
    6
      As discussed above, while UUW is generally not a lesser included offense of
attempted murder, here UUW was a lesser included offense in Counts 1, 2, 3, and 4.
664                                             State v. Bock

the defendant engaged in qualitatively different conduct
between the two violations (moving the victim to another
room), here, the two incidents of shooting were separated by
defendant and AC changing locations, new people becoming
involved in the situation, and defendant and J retreating
temporarily. Furthermore, it was only when defendant and
J had returned to their car and realized that AC and the
other members of the household had come around the house
that defendant shot again at AC and the others. Therefore,
the difference in location and the nature of the intervening
actions indicate that there was a sufficient pause between
the conduct underlying Count 1 and Count 4.
         Nevertheless, defendant argues that the refusal to
merge the guilty verdicts was error because the entire incident took only a few minutes and was one continuous, escalating shootout. We find this argument unavailing for two
reasons: (1) the events occurring during the pause are more
important than the duration of the pause, and (2) defendant
reduces several qualitatively different factual events to “a
series of intertwined and interrelated actions.”
         First, we have found sufficient pauses to exist in
cases with short timeframes. See, e.g., State v. King, 

, 

 (2014) (holding that there
was a sufficient pause between assaults because the victim
managing to briefly subdue the defendant between the two
attacks was “something of significance” which gave defendant the chance to renounce his criminal intent). Our reasoning in Ballangrud applies here. In that case, in which the
record did not specify the timeframe over which the events
occurred, the more salient consideration was whether the
conduct between two violations of the same statutory provision was qualitatively distinct from the conduct underlying
the violations. See Ballangrud, 

. Picking
up and relocating the victim in that case was qualitatively
different conduct, and thus, it did not matter that that conduct might have only taken a short time. Here, defendant’s
focus on the brevity of the entire confrontation is misplaced.
         Second, defendant’s reductive characterizations
of the incident as “a series of intertwined and interrelated
actions” and “an interconnected series of steadily escalating
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actions and reactions from defendant and the victims” do
not address the underlying factual events, instead painting
over any qualitative differences with conclusory statements.
Most notably, defendant does not address that defendant and
J at one point ceased being on the offensive and returned
to their car, only to start shooting again shortly after. If
merely moving the victim from one location to another was
enough to constitute a sufficient pause in Ballangrud, then
it follows that a total cessation of conflict, even if the conflict
resumed later at a different location, is similarly a sufficient
pause which would prevent Counts 1 and 4 from merging.
The trial court did not err by entering separate convictions
on Counts 1 and 4.
C. Upward Departure Sentence
         Defendant claims that the trial court erred by
departing from a presumptive sentence under the sentencing
guidelines, sentencing him to 144 months for his attempted
murder conviction, because there was insufficient evidence
to support the finding that prior criminal sanctions had
failed to deter him. Defendant argues that his limited criminal history was insufficient evidence to support the factual
finding underlying that enhancement factor as a matter of
law. We disagree.
         The court may impose an upward departure from a
presumptive sentence if it finds substantial and compelling
reasons warrant such a departure. OAR 213-008-0001. One
factor courts have relied on is that prior criminal sanctions
have not deterred the defendant. See, e.g., State v. Lennon,

, 

 (2010). It is not enough that
the defendant has faced criminal sanctions before, but
the court must find that the prior sanctions should have
deterred the criminal activity for which the defendant has
been convicted. See 

 The court considers factors such as
the number of criminal sanctions that the defendant has
faced before, when they occurred, and how similar they are
to the current criminal sanctions the defendant presently
faces. 

 “If the record supports the factual inference that
a defendant’s prior criminal convictions or sanctions should
have, but did not, deter the defendant from committing his
666                                             State v. Bock

new offense or offenses, that factual finding can, in a proper
case, support a departure sentence.” 

         Here, the trial court imposed an upward departure,
basing its decision entirely on the basis that prior criminal sanctions did not deter defendant. During the hearing
on that enhancement factor, the state introduced evidence
to support, as relevant here, that prior criminal sanctions
should have but did not deter defendant from the criminal
conduct at issue. The evidence included 23 juvenile referrals from defendant’s juvenile adjudicative record, his prior
adult indictment and conviction for second-degree robbery,
his disciplinary history while in jail, and testimony from his
post-prison supervisor that the crimes charged in this case
occurred while he was on post-prison supervision for second-degree robbery. The extent of defendant’s criminal history,
that defendant committed the crimes at issue while still on
post-prison supervision for a different crime, and the similarly assaultive nature of robbery to the crimes here sufficiently support the court’s finding that defendant’s prior
criminal sanctions had not deterred him.
         In contrast, defendant argues that the evidence is
insufficient because his criminal record is less extensive and
severe than the criminal records of the defendants in prior
cases in which the same enhancement factor was used as a
basis for an upward departure. Defendant specifically relies
on Lennon and State v. Jimenez, 

, 

, rev den, 

 (2022). In Lennon, the defendant’s
criminal record included more than 37 convictions for criminal violations, at least 34 violations of supervision terms,
and “repeated instances of arrest and incarceration, illegal
drug use, restraining order violations, failing to report or
keep contact with parole and probation officers, and failing to undergo or complete court-ordered drug treatment.”
Lennon, 

. In Jimenez, the defendant had 12
criminal convictions, four of which were “for assaultive ‘person’ crimes,” and 17 arrests for parole violations. Jimenez,

. While it is true that the defendants in
those cases did have more extensive criminal records, those
cases do not stand for the proposition that if a defendant had
a less extensive record, the factor would not apply. The court
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did not err in making an upward departure in its sentence
for attempted murder.
D. Consecutive Sentences
         Defendant claims in his last assignment of error
that the court improperly imposed consecutive sentences for
Counts 4 (attempted murder) and 7 (FIP). Article I, section
44(1)(b), of the Oregon Constitution provides, “No law shall
limit a court’s authority to sentence a criminal defendant
consecutively for crimes against different victims.” Here,
defendant conceded at oral argument that the victims of the
two crimes were different, with the victim of the attempted
murder charge being AC, and the victim of the FIP charge
being the public. Because defendant does not develop an
argument as to why Article I, section 44(1)(b), does not apply
here, we conclude that the trial court did not err.
                    III.   CONCLUSION
         First, the trial court did not err by not providing
defendant’s special self-defense jury instruction because the
uniform instructions it gave implied the same information.
Second, the trial court did not err by not merging Count 1
into Count 4 because there was a sufficient pause between
the conduct underlying each charge. Third, the trial court
did not err in imposing an upward departure sentence in
sentencing defendant because sufficient evidence supports
the court’s finding that prior criminal sanctions did not
effectively deter defendant. Last, the trial court did not err
in entering consecutive sentences for Counts 4 and 7 because
the two violations had different victims, AC and the public
respectively.
        Affirmed.