State v. Welch
State v. Welch
Opinion of the Court
Defendant appeals his conviction for manslaughter in the second degree. ORS 163.125. He asserts that he was not culpable, because the victim was a voluntary participant in the reckless conduct which resulted in the victim’s death. We affirm.
At about 3 a.m., on October 5, 1982, two Portland police officers received a radio dispatch reporting that there had been a shooting at defendant’s house. As the officers approached the house, defendant ran down the steps and told them, “I’ve killed him — my best friend.”
Defendant explained that he and Bishop were playing a game with defendant’s fully-loaded shotgun.
The indictment charged that defendant did “unlawfully and recklessly cause the death of another human being, to wit: Charles Owen Bishop, by shooting the said Charles Owen Bishop with a firearm, to wit: a shotgun.” ORS 163.125 provides:
“(1) Criminal homicide constitutes manslaughter in the second degree when:
“(a) It is committed recklessly; * * *.”
“Recklessly” is defined in ORS 161.085(9):
*340 “ ‘Recklessly,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
Relying on State v. Petersen, 270 Or 166, 526 P2d 1008 (1974), defendant assigns as errors the court’s failure to grant his motion for judgment of acquittal and to give a requested jury instruction.
Petersen does not control here. Although the victim in Petersen was a participant with the defendant in the race, he was killed by a vehicle driven by a third party, not by the defendant. The latter’s sole contribution to the victim’s death was his participation in the race. Here, defendant was not solely a participant with the victim in the agreed upon reckless conduct. Defendant shot and killed him.
In defendant’s third assignment he argues that the court erred in not giving a jury instruction that we held should have been given in State v. Van Gorder, 56 Or App 83, 641 P2d
“The fact that the indictment does not allege the means by which defendant caused the death of Blattman makes it all the more important that defendant’s requested instruction should have been given. Had the indictment alleged that death was caused by shooting Blattman with a revolver, the jury would have known that it was defendant’s state of mind at the time the shooting occurred which they were to consider. Without describing the precise act in the indictment and without an instruction limiting the jury’s consideration to the time the revolver was fired, the jury was free to find that defendant’s act of engaging in the game of ‘Russian roulette’ was enough to establish that he was acting with a reckless state of mind. Defendant’s agreement to participate in the game of ‘Russian roulette’ was, at most, an indirect or remote cause of Blattman’s death. It is defendant’s conduct in handing the gun to Blattman, and the way that it was handed to*342 him, which must be examined for the determination of whether defendant was acting recklessly.” 56 Or App at 87.
Here, however, the indictment alleges that defendant shot Bishop with a shotgun. The court read the indictment to the jury before opening statements and again during the jury instructions. The jury’s attention was already focused on defendant’s state of mind at the time when the shotgun discharged. There was no possibility of confusion in the jury’s mind that defendant’s reckless conduct, if any, was in jabbing the loaded shotgun at Bishop with his finger on the trigger. Even assuming that the requested jury instruction was appropriate, the court’s refusal to give it was harmless error.
Affirmed.
Defendant did not testify at trial. The facts are based on the officers’ observations and statements made by defendant, including a taped statement made approximately six hours after the incident. The tape was received in evidence and submitted to the jury.
The shotgun had one round in the chamber and five rounds in the magazine. The safety was off.
Because both assignments of error are based on Petersen, we will consider them jointly.
Defendant requested this jury instruction:
“You have been instructed as to the elements the state must prove to establish that the defendant is guilty of Second Degree Manslaughter.
“To find the defendant guilty of Second Degree Manslaughter, you must find beyond a reasonable doubt that the defendant, at the precise moment the gun discharged, was acting with the requisite mental state.
“Evidence has been presented from which you could find that the activity in which Kent Welch and Charles Bishop were engaged in that morning was a generally reckless activity. However, in addressing the question of guilt or innocence of the defendant you are to focus only on the moment when the gun discharged.
“In other words, in determining whether or not the defendant is guilty of Second Degree Manslaughter, you must address only the conduct and mental state of the defendant at the moment the gun discharged.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.