473 P.3d 1126
Or. Ct. App.2020Background
- Kevin Rapp was charged with fleeing or attempting to elude a police officer (ORS 811.540(1)(b)(A),(B)) and reckless driving after an officer pursued his truck; jury trial resulted in convictions on both counts.
- Officer testified Rapp accelerated after the officer activated lights and siren; eyewitnesses described high speed and running a stop sign; Rapp testified he did not see or hear signals until pulling into his driveway.
- The charging instrument and the State's proposed instruction tracked the statute’s language, requiring proof that the defendant "knowingly fled or attempted to elude a pursuing police officer."
- Rapp requested additional jury instructions: (1) a separate instruction defining "attempt to elude" as requiring an intentional mental state and a substantial step, and (2) a definition of "intentionally." The trial court refused those and instructed only using the statutory "knowingly" mental state.
- On appeal Rapp argued that "attempts to elude" is an inchoate "attempt" that necessarily imports an intentional mental state; the State argued the statute defines a substantive crime that uses "attempts" in its ordinary sense and prescribes "knowingly." The court affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Rapp) | Held |
|---|---|---|---|
| 1) Whether trial court erred by denying Rapp's pretrial motion for a continuance due to publicity | No prejudice; denial proper | Publicity required postponement | Denial rejected (no further discussion) |
| 2) Whether the phrase "attempts to elude" in ORS 811.540(1) implicitly requires an intentional mental state (i.e., attempt as inchoate crime) | Statute defines one substantive crime and specifies one mental state—"knowingly"; "attempts" used in ordinary sense, no separate intentional element required | "Attempt" is a legal term of art; an "attempt" requires intent and a substantial step—statute must be proved as intentional for that alternative | Rejected Rapp's view; the statute's single mental state ("knowingly") applies to both "flees" and "attempts to elude;" trial court did not err in refusing Rapp's requested intentional-attempt instructions |
Key Cases Cited
- State v. Cave, 223 Or App 60 (interpreting "attempts to elude" as attempting to escape notice or perception)
- State v. Reed, 256 Or App 61 (applied Cave in context of multiple attempts and merger issues)
- State v. George, 263 Or App 642 (explaining "flees" as knowingly continuing and avoiding compliance with an officer)
- State v. Enyeart, 266 Or App 763 (distinguishing offenses on differing mental-state requirements: knowing vs intentional)
- State v. Stockert, 303 Or App 314 (concluding legislature sometimes uses "attempt" in ordinary, non-inchoate sense)
- McLaughlin v. Wilson, 365 Or 535 (statutory interpretation principles: text, context, and legislative history)