difficult challenge in Oregon

2025“A facial challenge is ‘the most difficult challenge to mount successfully,’ because it ‘requires a defendant to establish that no set of circumstances exists under which’ the law would be valid.” Sottile, 336 Or App at 744 (quoting United States v. Rahimi, 602 US 680, 693 , 144 S Ct 1889 , 1898, 219 L Ed 2d 351 (2024)).

2025That is, “[f]or a statute to be facially uncon- stitutional, it must be unconstitutional in all circumstances, i.e., there can be no reasonably likely circumstances in which application of the statute would pass constitutional muster.” State v. Sutherland, 329 Or 359, 365 , 987 P2d 501 (1999); cf. City of Portland v. Sottile, 336 Or App 741, 744 , 561 P3d 1159 (2024) (stating with respect to a facial challenge under the Second Amendment to the United States Constitution that “[a] facial challenge is ‘the most difficult challenge to mount successfully,’ because it ‘requires a defendant to estab

2025“A facial challenge is ‘the most difficult challenge to mount successfully,’ because it ‘requires a defendant to establish that no set of circumstances exists under which’ the law would be valid.” Sottile, 336 Or App at 744 (quoting United States v. Rahimi, 602 US 680, 693 , 144 S Ct 1889 , 1898, 219 L Ed 2d 351 (2024)).

2025That is, “[f]or a statute to be facially uncon- stitutional, it must be unconstitutional in all circumstances, i.e., there can be no reasonably likely circumstances in which application of the statute would pass constitutional muster.” State v. Sutherland, 329 Or 359, 365 , 987 P2d 501 (1999); cf. City of Portland v. Sottile, 336 Or App 741, 744 , 561 P3d 1159 (2024) (stating with respect to a facial challenge under the Second Amendment to the United States Constitution that “[a] facial challenge is ‘the most difficult challenge to mount successfully,’ because it ‘requires a defendant to estab

2023In other words, “the issue is not whether a jury could have found defendant to have the requisite mental state on this record; rather, it is whether there is some likelihood that the jury might not have been persuaded that he had the requisite mental state, had it considered that issue.” State v. Stone, 324 Or App 688, 695 , 527 P3d 800 (2023) (emphases in original).

2023In other words, “the issue is not whether a jury could have found defendant to have the requisite mental state on this record; rather, it is whether there is some likelihood that the jury might not have been persuaded that he had the requisite mental state, had it considered that issue.” State v. Stone, 324 Or App 688, 695 , 527 P3d 800 (2023) (emphases in original).

2023We should therefore be appropriately cautious about concluding that the failure to instruct a jury on a required element of an offense was legally “harmless.” Here, as to each of defendant’s criminal-mischief convictions, we conclude that the error does not meet the legal standard for harmlessness.3 There is at least some 3 Recently, in State v. Perkins, 325 Or App 624, 630-31 , 529 P3d 999 (2023), which involved a preserved error, we called attention to the fact that “the failure 264 State v. Horton possibility that the jury might not have been persuaded that defendant had the requisite menta

2023We should therefore be appropriately cautious about concluding that the failure to instruct a jury on a required element of an offense was legally “harmless.” Here, as to each of defendant’s criminal-mischief convictions, we conclude that the error does not meet the legal standard for harmlessness.3 There is at least some 3 Recently, in State v. Perkins, 325 Or App 624, 630-31 , 529 P3d 999 (2023), which involved a preserved error, we called attention to the fact that “the failure 264 State v. Horton possibility that the jury might not have been persuaded that defendant had the requisite menta

2023Although harm- lessness is often a difficult analysis, it is especially difficult when considering instructional errors regarding the mental state associated with elements of a crime because we must “assess whether the jury might have found that element to be unproved, had it been instructed on it.” Id. at 263 .

2023Although harm- lessness is often a difficult analysis, it is especially difficult when considering instructional errors regarding the mental state associated with elements of a crime because we must “assess whether the jury might have found that element to be unproved, had it been instructed on it.” Id. at 263 .

2025That is, “[f]or a statute to be facially uncon- stitutional, it must be unconstitutional in all circumstances, i.e., there can be no reasonably likely circumstances in which application of the statute would pass constitutional muster.” State v. Sutherland, 329 Or 359, 365 , 987 P2d 501 (1999); cf. City of Portland v. Sottile, 336 Or App 741, 744 , 561 P3d 1159 (2024) (stating with respect to a facial challenge under the Second Amendment to the United States Constitution that “[a] facial challenge is ‘the most difficult challenge to mount successfully,’ because it ‘requires a defendant to estab

2025That is, “[f]or a statute to be facially uncon- stitutional, it must be unconstitutional in all circumstances, i.e., there can be no reasonably likely circumstances in which application of the statute would pass constitutional muster.” State v. Sutherland, 329 Or 359, 365 , 987 P2d 501 (1999); cf. City of Portland v. Sottile, 336 Or App 741, 744 , 561 P3d 1159 (2024) (stating with respect to a facial challenge under the Second Amendment to the United States Constitution that “[a] facial challenge is ‘the most difficult challenge to mount successfully,’ because it ‘requires a defendant to estab

2019The rule also forecloses an avenue for tax manipulation by preventing the taxpayer from converting a business expense of his company into one of his own simply by failing to seek reimbursement.” Id. at 1408 (citing Coplon, 277 F2d at 535).

2013Cite as 354 Or 222 (2013) 229 law, is different in purpose and function from the adult resti- tution statute that this court analyzed in Hart.

2007See MacPherson v. DAS, 340 Or 117, 138-39 , 130 P3d 308 (2006) (in a facial challenge, petitioner must show that the challenged provision cannot be lawfully applied under any circumstance); cf. United States v. Salerno, 481 US 739, 745 , 107 S Ct 2095 , 95 L Ed 2d 697 (1987) (under federal law, “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid”). *569 Of course, to determine whether the revised management plan cannot be applied c

2007See MacPherson v. DAS, 340 Or 117, 138-39 , 130 P3d 308 (2006) (in a facial challenge, petitioner must show that the challenged provision cannot be lawfully applied under any circumstance); cf. United States v. Salerno, 481 US 739, 745 , 107 S Ct 2095 , 95 L Ed 2d 697 (1987) (under federal law, “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid”). *569 Of course, to determine whether the revised management plan cannot be applied c

2007See MacPherson v. DAS, 340 Or 117, 138-39 , 130 P3d 308 (2006) (in a facial challenge, petitioner must show that the challenged provision cannot be lawfully applied under any circumstance); cf. United States v. Salerno, 481 US 739, 745 , 107 S Ct 2095 , 95 L Ed 2d 697 (1987) (under federal law, “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid”). *569 Of course, to determine whether the revised management plan cannot be applied c

1975It is not a self-serving “volunteer” in the category of the plaintiff in Signal Thread Co. v. King, 222 Tenn 241, 435 SW2d 468 , 6 CCH STC ¶ 250-149 (1968), but that decision is instructive on the effect of voluntary tax payments to a foreign state by a corporation seeking the right to apportion. ⑫ Lynn, The Uniform Division of Income for Tax Purposes Act, 19 Ohio St LJ 41 (1958), at 50-51, comments interestingly *101 on the most difficult of the factors, sales, apropos of the Uniform Act’s §§ 16 and 17 (ORS 314.665).