343 Or. App. 22
Or. Ct. App.2025Background
- Alan James Swinney was convicted by a jury for multiple offenses related to his actions at two Portland, Oregon protests in 2020, where he used bear mace, a paintball gun, and pointed a firearm at others.
- At issue was a second-degree assault charge (Count 5) involving Swinney shooting JB in the eye with a paintball gun, causing serious injury—though JB testified Swinney may have been aiming at someone else.
- Swinney asserted self-defense and defense of others, claiming he intended to shoot an unidentified individual, not JB.
- The trial court instructed the jury on the doctrine of transferred intent, allowing conviction if Swinney intended to injure one person but hurt another.
- Swinney also raised procedural issues regarding the court’s overruling of his objection to the prosecutor’s rebuttal, imposition of per diem fees, and an indefinite post-prison supervision (PPS) term.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Transferred Intent in 2nd-degree Assault | Law allows conviction if defendant’s intentional conduct harms a different person than intended | Statute requires intent to injure and actual injury to the same person | Transferred intent is encompassed by statute; conviction permitted |
| Preserving Objection to Prosecutor's Closing | Court properly overruled the objection; argument responded to defense’s closing | Prosecutor urged jury to convict for community protection, not guilt | Issue not preserved; objection’s grounds not made apparent; plain error review not available |
| Imposition of Per Diem Fees | Concedes error | Fees imposed not announced at sentencing, thus improper | Error; remand for resentencing to correct judgment |
| Indefinite PPS Term on Count 8 | Concedes error | Indeterminate PPS not allowed for this offense | Error; remand for resentencing to impose determinate PPS term |
Key Cases Cited
- State v. Johnson, 7 Or 210 (Or. 1879) (Early Oregon case articulating transferred intent in criminal law).
- State v. Owen, 369 Or 288 (Or. 2022) (Clarified elements and mental states for second-degree assault under Oregon law).
- State v. Wesley, 254 Or App 697 (Or. Ct. App. 2013) (Held that transferred intent doctrine applies to murder under Oregon’s Criminal Code).
- State v. Vanorden, 324 Or App 489 (Or. Ct. App. 2023) (Held transferred intent does not apply where statute identifies a specific recipient of conduct).
- State v. Gilmore, 336 Or App 706 (Or. Ct. App. 2024) (Transferred intent not applicable to use-of-deadly-force statute).