State v. Vanorden, 526 P.3d 824

Background

Defendant was under arrest: Officer Timms restrained him from behind, Officer Harris patted him down from behind, and Officer Hargrove approached from the front. Defendant spat toward Hargrove; a breeze carried the spittle into Timms's and Harris's faces.
Charges: Count 3 — attempted aggravated harassment as to Hargrove; Counts 1 and 2 — aggravated harassment as to Timms and Harris.
The State did not try to prove that defendant intended to spit at Timms or Harris; instead it proceeded on a transferred-intent theory (that intent to hit Hargrove could be transferred to Timms and Harris).
Trial court denied defendant’s motion for judgment of acquittal on Counts 1 and 2, instructed the jury that transferred intent applies, and the jury convicted on all counts.
On appeal the court held that ORS 166.070(1)(c) requires that the person intentionally propel saliva at the same public safety officer who is physically contacted by the saliva; transferred intent is not applicable, so the convictions on Counts 1 and 2 were reversed and Count 3 affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether transferred intent applies to aggravated harassment under ORS 166.070(1)(c)	Legislature intended broad protection; if a defendant intentionally spits at any officer and saliva hits another officer in the protected class, liability attaches (transferred intent applies).	Statute requires intentional propulsion of saliva at the specific public safety officer who is physically contacted; transferred intent is inapplicable.	Transferred intent does not apply; the statute’s text requires intent directed at the same officer who is contacted.
Whether the trial court erred by instructing the jury on transferred intent	Instruction correctly implemented legislative purpose and allowed conviction if defendant intended to hit one officer and saliva contacted another.	Instruction was legally erroneous because transferred intent is not available under the statute.	The jury instruction was erroneous.
Whether conviction can be sustained on alternative theory that defendant intended to spit at Timms/Harris	Even if instruction was wrong, evidence could support a finding that defendant intended to spit at Timms/Harris, so convictions should stand.	No evidence defendant intended to spit at Timms/Harris; State did not pursue that theory at trial; it would be unfair to uphold on a new theory on appeal.	No evidence the defendant intended to hit Timms/Harris and State did not advance that theory at trial; convictions cannot be sustained on appeal under a new theory.

Key Cases Cited

State v. Wesley, 254 Or App 697 (discusses transferred-intent doctrine in criminal context)
State v. Johnson, 7 Or 210 (historic statement of transferred intent principle)
State v. Burgess, 352 Or 499 (unfair to sustain conviction on a theory raised first on appeal)
State v. Gaines, 346 Or 160 (statutory text governs interpretation)
State v. Prophet, 318 Or App 330 (statutory-text principles in criminal-law interpretation)